Tuesday, January 15, 2008

Postscript: Wilson Response

The first of the defendants’ responses to the lacrosse case civil suit has been filed by ex-investigator Linwood Wilson—who, in an odd twist, purports to be representing himself.

Wilson’s basic argument: all claims against him should be dismissed, since his status as a prosecutor’s assistant entitled him to absolute immunity through. (The Wilson filing concedes that no case in the 4th Circuit has extended such absolute immunity to a DA’s investigator, though decisions from other circuits have done so.) The courts, Wilson notes, have consistently maintained that prosecutors are entitled to absolute immunity from civil suits on questions of (1) whether to prosecute; (2) withholding potentially exculpatory evidence. This doctrine, he continues, has been expanded to included “other illegal actions taken by judicial officers in the course of performing their judicial duties.”

Wilson bases his memorandum on an unusual premise. He concedes that his “actions might have lead to a deprivation of a constitutional right or [were] otherwise illegal.” But, he says, this is irrelevant, since all of his potentially illegal acts—the possible witness tampering in the arrest of Moez Elmostafa; what he himself described as an internal affairs investigation of Sgt. John Shelton; and the December 21, 2006 “interview” with Crystal Mangum—occurred after indictments had been obtained against Reade Seligmann and Collin Finnerty.

This argument is, in some ways, the reverse of one claim made by Mike Nifong in his disbarment proceedings. Nifong suggested that the state bar’s prohibition against public statements that might heighten condemnation of the accused only kicked in when the grand jury returned an indictment, not when his office had publicly accused a group of people. Denunciatory remarks that might have been permissible before indictments, Nifong argued, would not be after indictments.

In his memorandum of law, Wilson is suggesting that prosecutorial immunity kicks in once indictments occur. Illegal behavior that might expose an investigator to a civil suit before indictments, Wilson contends, would not do so after indictments.

Nifong’s argument didn’t work before the bar, and Wilson’s is unlikely to do so now. Carried to its logical extreme, the argument is absurd on its face: under Wilson’s theory, a prosecutor directing the police investigation could seek to secure indictments with no investigation at all, and then actually conduct the investigation through unethical or even illegal acts once a rubber-stamp grand jury has returned indictments.

Wilson’s memorandum appears not to have been carefully vetted: it contains at least three items that undermine the defendant’s call for an across-the-board dismissal of the suit.

1.) Wilson concedes that there is no absolute immunity for actions that are administrative or investigatory in nature, but denies that he did anything administrative or investigatory in the case. He continues, “Other actions that have been held to be investigatory in nature are: making public statements to the media (Buckley 599 U.S. at 277).”

But Wilson did make a key “public statement to the media,” in June 2006. Here was WTVD’s recapitulation:

A bitter exchange that started outside of the courtroom when Linwood Wilson, an investigator for the District Attorney's Office, interrupted a press conference by defense attorney, Joseph Cheshire.

The interruption came as Cheshire was referencing the discovery documents that indicate the accuser gave conflicting accounts of the alleged rape.

In affidavits filed by police, authorities said the accuser told police she was raped by three men at the March 13 team party where she was hired to perform as an exotic dancer with a second woman. District Attorney Mike Nifong won indictments against three players and has said they were the only ones implicated by the evidence.

After the exchange, Wilson told Eyewitness News that he personally read all 1814 pages of discovery documents and has not read that the alleged victim changed her version of the story.

Wilson’s “public statement to the media” was, of course, demonstrably false—as a letter from Joe Cheshire pointed out the next day.

So, by the standard that Wilson himself lays out in his memorandum of law, he was not entitled to absolute immunity.

2.) Wilson quoted the Buckley court: “When a prosecutor performs the investigative functions normally performed by a detective or a police officer, it is neither appropriate nor justifiable that, for the same act, immunity should protect one and not the other.”

It’s unclear how Wilson believes this citation helps his case. As he repeatedly admits, everything he did in the case was under the direction of Mike Nifong. And Mike Nifong assumed personal command of the police investigation—performing “the investigative functions normally performed by a detective or a police officer”—eight days into the case.

Therefore, by Wilson’s own argument (that he, as Nifong’s investigator, is entitled to the same treatment as was Nifong), Wilson’s own citation suggests that he should be held liable for his activity.

3.) Wilson quoted Hughes v. Ranger Fuel Corp., which states that to uphold a §1985 complaint, “there must be some racial, or perhaps otherwise class based, invidiously discriminatory animus behind the conspirators’ action.”

As with his citation of Buckley, it’s unclear how Wilson believes citing Hughes helps his case. As he repeatedly admits, everything he did in the case was under the direction of Mike Nifong. And if Mike Nifong demonstrated nothing else, it was a “racial, or perhaps otherwise class based, invidiously discriminatory animus” against the lacrosse players—beginning with several statements in his spring 2006 publicity barrage, and continuing on through his early November campaign e-mail.

Therefore, by Wilson’s own argument (that he, as Nifong’s investigator, is entitled to the same treatment as was Nifong), Wilson’s own citation suggests that he should be held liable for his activity.

Now that you have established a blog that has attracted 3,500,000 unique visitors, it is a shame to let it waste away.

Have you thought about making it a group blog, with Stuart, or some top commenters or like minded academics?

DIW was such an amazing blow to the group of 88 mindset at our universities, yet you have only scratched the surface. This fight should go on, and DIW is the most effective weapon in the arsenal against politically correct group-think on campus.

LOL, Good Ole Linwood proved that he is in fact not immune to civil action. The plantiff's attorneys want to thank you for all your legal work on their behalf. Yet another example that once again proves there is no lifeguard at the gene pool.

Carried to its logical extreme, the argument is absurd on its face: under Wilson’s theory, a prosecutor directing the police investigation could seek to secure indictments with no investigation at all, and then actually conduct the investigation through unethical or even illegal acts once a rubber-stamp grand jury has returned indictments.

Change "could" to "did" and you have the Nifong Scandal case in a nutshell.

Wilson was a willing co-conspirator when he was riding high as a member of Nifong's posse. He got to dance, now it's time to pay the fiddler.

I think he broke the speed record set by Nifong's attorneys in his disbarment hearing on creating a "reverse Matlock moment." As you stated, he's proven the plaintiffs' case for them. "Aha! So I DO admit that I am guilty." Aaah, sweet schadenfreude.

I keep hearing that Defendants' immunity can only be broken by unlawful acts. Then I hear Defendants admit, okay, they did commit unlawful acts. But then Defendants say it's doesn't matter because their unlawful acts weren't 'enough' to break immunity.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review